Probing Question: Are there limits to freedom of speech?

The intrinsic hope and optimism of a new year were shattered with the Jan. 7, 2015 terrorist massacre of 12 journalists in the office of French satirical magazine, Charlie Hebdo

The attack prompted swift worldwide condemnation, but it has also renewed intense debate about freedom of expression. Not only do individual countries differ radically in their stances on free speech and censorship, but there are struggles within each nation to interpret and enforce their citizens' legal rights.

Are there limits to the right to free speech in the United States? If so, where do we draw those lines? 

"The U.S. Supreme Court has recognized very few exceptions to the First Amendment," says Robert Richards, founding director of the Pennsylvania Center for the First Amendment at Penn State, which was established in 1992 to promote awareness and understanding of the principles of free expression to the scholarly community, the media and the general public.

"The categories of speech that fall outside of its protection are obscenity, child pornography, defamation, incitement to violence and true threats of violence," he explains. "Even in those categories, there are tests that have to be met in order for the speech to be illegal. Beyond that, we are free to speak."

In the United States, several states have had laws against blasphemy even though such laws violate the U.S. Constitution. 

Charlie Hebdo is considered by many to be an inflammatory and offensive publication, particularly for its graphic cartoons lampooning religious figures such as the Prophet Muhammad. Does that change how we should view the publication's free speech rights as seen through the lens of American laws and values?

"Many people are mistaken in their belief that offensive speech or hate speech is not protected," says Richards. "The Supreme Court has repeatedly affirmed the notion that unpopular speech enjoys full First Amendment protection. As the late Justice William Brennan put it, in a case involving flag burning, 'If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.'"

Some would argue that much of the content in Charlie Hebdo is blasphemous. Yet the very notion of blasphemy -- defined as insulting God or any religious or holy person or thing -- varies greatly around the world. In some countries, blasphemy is not only illegal but is punishable by death. In the United States, several states have had laws against blasphemy even though such laws violate the U.S. Constitution. Pennsylvania enacted a blasphemy law in 1977, which was struck down by the U.S. District Court in 2007. The last conviction for blasphemy in the U.S. took place in Arkansas in 1928.

"In the United States, people are free to criticize religion as well as government," Richards says. "Some of that criticism can be quite caustic, yet we don't put people in jail, or worse, for engaging in that type of expression. Just a couple of years ago, the Supreme Court upheld the right of the Westboro Baptist Church to protest at military funerals with signs carrying extremely offensive messages. Without question, most Americans found those demonstrations to be repugnant. Nonetheless, we protect the right to protest."

France has a long history of subversive political satire, but so does the United States, reminds Richards. "Satire and parody in the United States are as old as the country itself. Satire, such as what we often see in political cartoons, is an important part of the rights of a free press. Of course, in some parts of the world, that type of expression is taken much more seriously and the cartoonists are punished." 

In our own legal history, he says, "the Supreme Court ruled unanimously in 1988 that satire and parody are protected expression. The court noted the history of political cartoons and affirmed the importance of the protection even though the cartoons can be quite stinging. Then–Chief Justice Rehnquist wrote, 'The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events -- an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.'" In a 1964 case, the Court observed, "Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth."

Documents such as the United Nations' "Universal Declaration of Human Rights" represent an attempt to create a shared global agreement regarding universal rights and freedoms, but some commentators have suggested that violent culture clashes between fundamentalist beliefs about blasphemy and secular beliefs about democracy and freedom of speech are inevitable in today's polarized world.

"While I support freedom of speech throughout the world, and the Universal Declaration certainly is a sound philosophy, I do believe that each country has the right to determine its own laws regarding speech," says Richards. "We have a strong sense of free speech in the United States, and we back that up with a constitutional guarantee. Not all countries share our sense of protecting speech, and efforts to create a more global initiative would be difficult in this area."

However, the world is not entirely without common ground regarding free speech, says Richards. "What was inspirational to me during the Charlie Hebdo tragedy was the outpouring of support for free expression from many corners of the world. That support alone sends a message that many citizens of the world unite in the need for protection for free speech."

In the U.S., he says, it bears remembering that "in a sense, we have a First Amendment to protect unpopular expression -- or the minority viewpoint -- because we don't need a constitution to protect what the majority thinks. The majority takes care of itself."

Robert Richards directs the Pennsylvania Center for the First Amendment and holds the John and Ann Curley Professorship in First Amendment Studies, in Penn State's College of Communications. He can be reached at rdr2@psu.edu.

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Last Updated May 01, 2015